Citation Nr: 0834859
Decision Date: 10/10/08 Archive Date: 10/16/08
DOCKET NO. 04-24 991A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia
THE ISSUES
1. Entitlement to service connection for right ear hearing
loss.
2. Entitlement to an initial, compensable rating for
laceration bruise, left distal leg with healing.
3. Entitlement to service connection for left lower leg
disability, other than laceration bruise of the left distal
leg with healing, to include as secondary to residuals of
fracture of the right tibia.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Hager, Counsel
INTRODUCTION
The veteran had active service from September 1957 to
November 1960.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from various RO rating decisions.
In August 2003, the RO granted service connection and
assigned an initial 0 percent (noncompensable) rating for
laceration bruise of the left distal leg with healing,
effective June 30, 2003. In that decision, the RO also
denied service connection for right ear hearing loss. The
veteran filed a notice of disagreement (NOD) in August 2003,
and the RO issued a statement of the case (SOC) in April
2004. The veteran filed a substantive appeal (via a VA Form
21-4138, Statement in Support of Claim, which was accepted in
lieu of a VA Form 9) in July 2004.
In October 2005, the RO denied an increased (compensable)
rating for residuals of fracture, right tibia, as well as
denied service connection for left lower leg and left knee
disabilities, each to include as secondary to the service-
connected right tibia fracture residuals. The veteran filed
a NOD with each denial in October 2006. In April 2008, the
RO issued a second SOC that addressed the denial of a higher
initial rating for right tibia fracture residuals and service
connection for left knee disability, to include as secondary
to right tibia fracture residuals, but not the denial of
service connection for left lower leg disability, to include
as secondary to right tibia fracture residuals
Subsequently, the RO continued the denials of the claim for a
higher initial rating for left leg laceration bruise and for
service connection for right ear hearing loss, as reflected
in a March 2008 supplemental SOC (SSOC).
During the course of the appeal, the veteran's claims file
was permanently transferred from the RO in Columbia, South
Carolina to the RO in Atlanta, Georgia; hence, the Atlanta RO
now has jurisdiction over the claims on appeal.
In August 2008, the veteran testified during a hearing before
the undersigned Veterans Law Judge at the RO; a transcript of
that hearing is of record. [Parenthetically, the Board notes
that although, during the hearing, testimony was received on
issues in addition to those set forth on the title page, and
as noted above below, as discussed, this was subject to
verification of jurisdiction of all issues; consistent with
the RO's certification of the appeal, the Board's
jurisdiction is limited to those matters noted above and
below).
The Board's decision on the claims for service connection for
right ear hearing loss and for an initial, compensable rating
for laceration bruise, left distal leg with healing, is set
forth below. The claim for service connection for left lower
leg disability, other than laceration bruise left distal leg
with healing, to include as secondary to residuals of
fracture, right tibia-for which the veteran has filed the
first of two actions needed to place this matter in appellate
status-is addressed in the remand following the order; this
matter is being remanded to RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
when further action, on his part, is required.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate each claim herein decided has been accomplished.
2. While the veteran had in-service ear symptoms and likely
had significant in-service noise exposure as an infantryman,
the evidence does not reflect right ear hearing loss
disability in service, and the only competent opinion to
address the question of whether there exists a nexus between
the veteran's current right ear hearing loss and service
weighs against the claim.
3. Since the June 30, 2003 effective date of the grant of
service connection, the veteran's laceration bruise of the
left distal leg has not limited the function of the left leg,
and there is no evidence that the 2.5 cm. by 2 cm. wide scar
is deep, causes limited motion, is unstable, or is painful on
examination.
CONCLUSIONS OF LAW
1. The criteria for service connection for right ear hearing
loss are not met. 38 C.F.R. §§ 1131, 1137, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.385 (2007).
2. The criteria for an initial, compensable rating for
laceration bruise, left distal leg with healing, have not
been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002
& Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3,
4.7, 4.10, 4.20, 4.27, 4.30, 4.31, 4.118, Diagnostic Codes
7899-7805 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 and Supp. 2008)) includes enhanced duties to
notify and assist claimants for VA benefits. VA regulations
implementing the VCAA have been codified, as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007).
Notice requirements under the VCAA essentially require VA to
notify the veteran of any evidence that is necessary to
substantiate the claim(s), as well as the evidence that VA
will attempt to obtain and which evidence he or she is
responsible for providing. See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (addressing the duties
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).
As delineated in Pelegrini v. Principi, 18 Vet. App. 112
(2004), after a substantially complete application for
benefits is received, proper VCAA notice must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim(s); (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in her or his possession that pertains to the
claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).
The Board notes that, effective May 30, 2008, 38 C.F.R. §
3.159 has been revised, in part. See 73 Fed. Reg. 23,353-
23,356 (April 30, 2008). Notably, the final rule removes the
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated
that VA will request that a claimant provide any pertinent
evidence in his or her possession.
VA's notice requirements apply to all five elements of a
service connection claim: veteran status, existence of a
disability, a connection between the veteran's service and
the disability, degree of disability, and effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). In rating cases, a claimant must be provided
with information pertaining to assignment of disability
ratings (to include the rating criteria for all higher
ratings for a disability), as well as information regarding
the effective date that may be assigned. Id.
VCAA-compliant notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
by the agency of original jurisdiction (in this case, the
RO). Id.; see also Pelegrini, 18 Vet. App. at 112. See also
Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339 (Fed. Cir. 2003).
In this appeal, in a pre-rating July 2003 letter, the RO
provided notice to the veteran regarding what information and
evidence was needed to substantiate what were then claims for
service connection, as well as what information and evidence
must be submitted by the veteran, what information and
evidence would be obtained by VA, and the need for the
veteran to advise VA of and to submit any further evidence
that is relevant to the claims. The August 2003 RO rating
decision reflects the initial adjudication of the claim after
issuance of that letter. Hence, the July 2003 letter met all
four of Pelegrini's content of notice requirements as well as
the VCAA's timing of notice requirement. The July 2003
letter also included a specific request that the veteran send
the requested evidence to the RO (consistent with Pelegrini
and the version of 38 C.F.R. § 3.159 then in effect).
While the July 2003 letter did not provide specific notice of
the information and evidence needed to substantiate the claim
for a higher initial rating for laceration bruise, left
distal leg (as the claim for service connection had not yet
been granted), the letter did indicate (with regard to a
different claim) that the veteran could submit evidence
showing that his already service-connected right leg
disability had increased in severity. Moreover, the
veteran's NOD and substantive appeal, as well as his Board
hearing testimony, reflect that he understood that to
establish entitlement to a higher rating for his laceration
bruise of the left leg, he had to show that this disability
had increased in severity. Thus, the veteran demonstrated an
awareness of what was needed to support his claim for a
higher initial rating for this disability. See Dalton v.
Nicholson, 21 Vet. App. 23, 30-31 (2007). Consequently, any
error in this regard was "cured by actual knowledge on the
part of the claimant." See Sanders v. Nicholson, 487 F.3d
881, 889 (Fed. Cir 2007).
The Board further points out that the April 2004 SOC set
forth the text of 38 C.F.R. § 4.118, Diagnostic Code (DC)
7805, applicable to "other" scars, under which the
veteran's left leg laceration bruise is rated, and the March
2008 SSOC set forth the criteria applicable to scars other
than head, face, or neck, which are also potentially
applicable to the veteran's disability. While the RO has not
provided general notice pertaining to VA's assignment of
disability ratings or effective dates; the omission of such
notice is not shown to prejudice the veteran. As the Board
herein denies the claims for service connection and for a
higher initial rating, no disability rating or effective date
is being, or is to be, assigned; thus, there is no
possibility of prejudice to the veteran under the notice
requirements of Dingess/Hartman.
The record also reflects that VA has made reasonable efforts
to obtain or to assist in obtaining all relevant records
pertinent to the matters on appeal. Pertinent medical
evidence associated with the claims file consists of the
veteran's service medical records, VA outpatient treatment
records, and reports of VA examinations. Also of record and
considered in connection with the appeal is the transcript of
the veteran's Board hearing as well as various written
statements provided by the veteran and by his representative,
on his behalf.
In summary, the duties imposed by the VCAA have been
considered and satisfied. Through various notices of the RO,
the veteran has been notified and made aware of the evidence
needed to substantiate each claim, the avenues through which
he might obtain such evidence, and the allocation of
responsibilities between himself and VA in obtaining such
evidence. There is no additional notice that should be
provided, nor is there any indication that there is
additional existing evidence to obtain or development
required to create any additional evidence to be considered
in connection with either claim. Consequently, any error in
the sequence of events or content of the notice is not shown
to prejudice the veteran or to have any effect on the appeal.
Any such error is deemed harmless and does not preclude
appellate consideration of the matters on appeal, at this
juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543
(2006) (rejecting the argument that the Board lacks authority
to consider harmless error). See also ATD Corp. v. Lydall,
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
II. Analysis
A. Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated during
service. 38 U.S.C.A. §§ 1131, 1137 (West 2002 & Supp. 2008);
38 C.F.R. § 3.303 (2007). Such a determination requires a
finding of current disability that is related to an injury or
disease in service. Watson v. Brown, 4 Vet. App. 309 (1993);
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service
connection may be granted for a disability diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disability is due to disease or
injury that was incurred or aggravated in service. 38 C.F.R.
§ 3.303(d) (2007).
Specific to claims for service connection, impaired hearing
is considered a disability for VA purposes when the auditory
threshold in any of the frequencies of 500, 1,000, 2,000,
3,000, or 4,000 Hertz is 40 decibels or greater; the
thresholds for at least three of these frequencies are 26 or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007).
The veteran asserts that his current right ear hearing loss
is the result of ear infections and/or acoustic trauma from
his duties as an infantryman exposed to machine gun fire and
other loud noises. The service medical records contain
notations of right ear infection and right otitis externa,
and the veteran's DD 214 reflects that he was an infantryman.
The veteran's service medical records contain notations
regarding right ear infections and otitis externa.
Specifically, a December 1957 note indicated that the
veteran's right ear infection was associated with an upper
respiratory infection. There was no acute ear infection, and
the veteran was given ear drops. Similar complaints and
treatment were noted in January 1958, and right otitis
externa was noted in May 1958 with the veteran again being
given ear drops. On the August 1960 separation examination,
both whispered voice and audiometric testing were performed.
Whispered voice results were a normal 15/15.
On audiometric testing, the veteran's right ear pure tone
thresholds, in decibels, were as follows (American Standards
Association (ASA) units are converted to International
Standards Organization (ISO) units):
Hertz
1,000
2,000
3,000
4,000
Right ear
20
25
Not
reported
25
Speech audiometry was not reported. The assessment was
"deafness, n.e.c., ND (not disabling). Perceptive type
hearing loss, mild, left ear."
Thus, while there is in-service evidence of right ear
infections and otitis externa, the separation examination
report reflects that the veteran did not have right ear
hearing loss disability for VA purposes (as opposed to left
ear hearing loss, for which he has been granted service
connection).
The Board notes, however, that the absence of in-service
evidence of a hearing loss disability is not fatal to a claim
for service connection. See Ledford v. Derwinski, 3 Vet.
App. 87, 89 (1992). Competent evidence of a current hearing
loss disability (i.e., one meeting the requirements of
section 3.385, as noted above) and a medically sound basis
for attributing such disability to service may serve as a
basis for a grant of service connection for hearing loss.
See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
On April 1961 VA audiometric testing, the veteran's right ear
pure tone thresholds, in decibels, were as follows (ASA units
are converted to ISO units):
Hertz
1,000
2,000
3,000
4,000
Right ear
15
25
Not
reported
35
Speech audiometry revealed speech recognition ability of 88
percent in the right ear.
On July 1961 VA audiometric testing, the veteran's right ear
pure tone thresholds, in decibels, were as follows (ASA units
are converted to ISO units):
Hertz
1,000
2,000
3,000
4,000
Right ear
25
40
Not
reported
35
Speech audiometry revealed speech recognition ability of 100
percent in the right ear.
On August 1961 VA audiometric testing, the veteran's right ear
pure tone thresholds, in decibels, were as follows (ASA units
are converted to ISO units):
Hertz
1,000
2,000
3,000
4,000
Right ear
10
25
Not
reported
25
Speech audiometry revealed speech recognition ability of 96
percent in the right ear.
A November 2003 VAOPT note indicates that the veteran had
mild, falling to severe, sensoneural hearing loss in both
ears, but the scores were not included with the note. Speech
reception thresholds were consistent with pure tone results,
but word recognition scores were excellent in both ears.
On October 2007 VA audiometric testing, the veteran's right
ear pure tone thresholds, in decibels, were as follows:
Hertz
1,000
2,000
3,000
4,000
Right ear
40
70
65
60
Speech audiometry revealed speech recognition ability of 96
percent in the right ear.
The above evidence reflects that the veteran currently has
right ear hearing loss to an extent recognized as a
disability, pursuant to 38 U.S.C.A. § 3.385, and that there
was evidence of such hearing loss on the July 1961 VA
examination on which the puretone threshold was 40 decibels
at the 2000 frequency. However, a nexus between the current
hearing loss disability and service is not established.
While the veteran had in-service ear symptoms and likely had
significant in-service noise exposure as an infantryman, the
evidence does not reflect right ear hearing loss disability
in service. Moreover, the only competent opinion on the
question of whether there exists a medical relationship
between the veteran's current bilateral hearing loss and
service weighs against the claim. In December 2007, the
audiologist who evaluated the veteran in October 2007
reviewed the claims file and prepared an addendum to the
October 2007 report. After a detailed review the evidence in
the claims file, including the in-service notations regarding
right ear symptomatology, the in-service and post-service
audiometric testing (including the 40 decibel score at the
2000 frequency on the July 1961 VA examination), and evidence
of in-service and post-service noise exposure, the VA
audiologist concluded that the veteran's hearing loss is not
likely related to service. Significantly, neither the
veteran nor his representative has presented, identified, or
even alluded to the existence of any contrary medical opinion
supporting that his right ear hearing loss is related to
service-to include right ear symptomatology and/or noise
exposure in service.
In addition to the above, the Board has considered the oral
and written assertions advanced by the veteran and on his
behalf. However, to the extent that those assertions are
being offered to establish a nexus between current hearing
loss and service, such evidence must fail. As a laypersons
not shown to possess the appropriate training and expertise,
the veteran and his representative simply are not competent
to provide a probative (persuasive) opinion on the matter on
which this case turns. See, e.g., Bostain v. West, 11 Vet.
App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet.
App. 492 (1992)); Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge"). Hence, the lay
assertions in this regard have no probative value.
For all the foregoing reasons, the claim for service
connection for right ear hearing loss must be denied. In
reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. However,
as the preponderance of the evidence is against the veteran's
claim, that doctrine is not applicable. See 38 U.S.C.A. §
5107(b) (West 2002 & Supp. 2008); 38 C.F.R. § 3.102 (2007);
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
B. Higher Initial Rating
Disability evaluations are determined by application of the
criteria set forth in the VA's Schedule for Rating
Disabilities, which is based on average impairment in earning
capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38
C.F.R. Part 4 (2007). When a question arises as to which of
two ratings apply under a particular diagnostic code, the
higher evaluation is assigned if the disability more closely
approximates the criteria for the higher rating. 38 C.F.R. §
4.7 (2007). After careful consideration of the evidence, any
reasonable doubt remaining is resolved in favor of the
veteran. 38 C.F.R. § 4.3 (2007).
The veteran's entire history is to be considered when making
disability evaluations. See generally 38 C.F.R. § 4. (2007);
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
entitlement to compensation already has been established and
an increase in the disability rating is at issue, it is the
present level of disability that is or primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in
Fenderson, the United States Court of Appeals for Veterans
Claims (Court)noted an important distinction between an
appeal involving a veteran's disagreement with the initial
rating assigned at the time a disability is service
connected. Where the question for consideration is the
propriety of the initial rating assigned, evaluation of the
medical evidence since the effective date of the grant of
service connection and consideration of the appropriateness
of "staged rating" (i.e., assignment of different ratings
for distinct periods of time, based on the facts found) is
required. See Fenderson, 12 Vet. App. at 126.
The veteran's laceration bruise, left distal leg, is rated
under 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7899-7805.
Hyphenated diagnostic codes are used when a rating under one
code requires use of an additional diagnostic code to
identify the basis for the evaluation assigned. 38 C.F.R. §
4.27. Here, DC 7899 reflects that there is no diagnostic
code specifically applicable to the veteran's distal left leg
laceration bruise, and DC 7805, applicable to "other"
scars, reflects that the veteran's left leg scar was found to
be the most significant residual of his left leg laceration
bruise, and the most analogous disease or injury with similar
functions affected, anatomical localization, and
symptomatology. 38 C.F.R. § 4.20.
Considering the pertinent evidence of record in light of the
above-noted criteria, the Board finds that the criteria for
the assignment of an initial, compensable rating for left
distal leg laceration bruise have not been met at any point
since the June 30, 2003 effective date of the grant of
service connection for that disability.
While a December 2003 VAOPT note and report of the January
2008 VA joints and scars examination reflect that the veteran
complained of pain in the left leg, the evidence reflects
that the veteran's laceration bruise has not affected the
function of his left leg. On January 2008 VA examination,
the left tibia and fibula were normal, there was no
neurovascular deficit, the left knee had no heat, redness,
edema, effusion, range of motion was a near-normal, from 0 to
120 degrees ( see 38 C.F.R. § 4.71a, Plate II), with pain at
120 degrees, and there was diffuse tenderness and crepitus,
along with pain, weakness, lack of endurance, and fatigue
with repetition, but this did not reduce the range of motion.
The knee was stable. Similarly, the left ankle had no
increased heat or redness, no edema, no effusion, no loss of
function, range of motion was a normal 0 to 20 degrees on
dorsiflexion and a near normal 0 to 40 degrees on plantar
flexion ( see 38 C.F.R. § 4.71a, Plate II); repetition of
motion did not produce pain, weakness, lack of endurance,
fatigue, or incoordination on repetitive movements. The only
diagnosis on the January 2008 VA examination was of mild
arthralgia, and neither this, nor the slightly less than
normal range of motion figures were attributed to scar from
the veteran's laceration bruise. Thus, the evidence does not
reflect that the scar from the veteran's laceration bruise
has affected the function of his left leg.
The Board also has considered the applicability of
alternative diagnostic codes for evaluating the veteran's
laceration bruise of the left leg, but finds that no higher
rating is assignable. On January 2008 VA scars examination,
there was a 2.5 cm. by 2 cm. scar in the middle third of the
left leg, The scar was described as well-healed,
nonadherent, and nontender, the scar was superficial and
visible, and was not unstable, elevated, depressed, deep,
there was no inflammation, edema, keloid formation, or
induration or inflexibility, and there was mild
hyperpigmentation. Thus, as there is no evidence that the
scar from the left leg laceration bruise is deep, causes
limited motion, is 144 square inches (929 square cm.) or
greater in area, is unstable, or is painful on examination
(notwithstanding the veteran's hearing testimony that the
scar is painful), an initial compensable rating is not
available under 38 C.F.R. § 4.118, DCs 7801-7805.
The above determinations are based upon application of the
pertinent provisions of VA's Rating Schedule. Additionally,
the Board finds that the record does not reflect that, at any
point since the June 30, 2003 effective date of the grant of
service connection, the veteran's disability has reflected so
exceptional or unusual a disability picture as to warrant the
assignment of any higher rating on an extra-schedular basis.
See 38 C.F.R. § 3.321(b)(1) (as cited in the August 2003
rating decision. There is simply no showing that the left
leg laceration bruise has resulted in marked interference
with employment (i.e., beyond that contemplated in the
assigned noncompensable rating, or has resulted in frequent
periods of hospitalization. There also is no showing that the
left leg laceration bruise has otherwise rendered impractical
the application of the regular schedular standards. In the
absence of evidence of any of the factors outlined above, the
criteria for invoking the procedural actions outlined in 38
C.F.R. § 3.321(b)(1) have not been met. See Bagwell v.
Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet.
App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
Under these circumstances, the Board concludes that there is
no basis for staged rating of the veteran's laceration
bruise, left distal leg, with healing, pursuant to Fenderson,
and that the claim for an initial, compensable rating for
this disability must be denied. In reaching these
conclusions, the Board has considered the applicability of
the benefit-of-the-doubt doctrine. However, as the
preponderance of the evidence is against assignment of any
higher rating, that doctrine is not applicable in the instant
appeal. See 38 U.S.C. § 5107(b) (West 2002 & Supp. 2008);
38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App.
49, 53-56 (1990).
ORDER
Service connection for right ear hearing loss is denied.
An initial, compensable rating for laceration bruise, left
distal leg with healing, is denied.
REMAND
As noted, in its October 2005 rating decision, the RO, among
other things, denied service connection for left lower leg
and left knee disabilities, each to include as secondary to
the service-connected right tibia fracture residuals. In
October 2006, the veteran filed a statement in support of
claim (VA Form 21-4138), in which he specifically disagreed
with the October 2006 decision as to service connection for
left lower leg and left knee disabilities, listing these
issues separately.
The Board finds that this document-filed within one year of
notification of the October 2006 rating decision-constitutes
a valid NOD as to the claim for service connection for left
lower leg disability, to include as secondary to the service-
connected right tibia fracture residuals. See 38 C.F.R.
§§ 20.201, 20.302(a) (2007). However, the RO has yet to
issue a SOC with respect to this claim, the next step in the
appellate process. See 38 C.F.R. § 19.29 (2007); Manlincon
v. West, 12 Vet. App. 238, 240- 41 (1999); Holland v. Gober,
10 Vet. App. 433, 436 (1997). Consequently, this matter must
be remanded to the RO for the issuance of a SOC. Id. The
Board emphasizes, however, that to obtain appellate review of
any issue not currently in appellate status, a perfected
appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2007).
The Board notes that, while the veteran has been granted
service connection for laceration bruise, left distal leg,
the RO separately addressed the issue of service connection
for left leg disability in the October 2006 rating decision
and the veteran disagreed with the RO's denial of this claim.
Consequently, the Board has recharacterized the issue as
service connection for left lower leg disability, other than
laceration bruise of the distal left leg with healing. The
Board also notes that the RO did issue a SOC (in April 2008)
as to the issue of service connection for left knee
disability, to include as secondary to the service-connected
right tibia fracture residuals, thus indicating that this was
a separate claim as well, and did not encompass the claim for
service connection for left lower leg disability.
Accordingly, this matter is hereby REMANDED to RO, via the
AMC, for the following action:
1. The RO must furnish to the veteran
and his representative a SOC on the
matter of service connection for left
lower leg disability, other than
laceration bruise, left distal leg with
healing, to include as secondary to
residuals of fracture of the right tibia,
along with a VA Form 9, and afford them
the appropriate opportunity to submit a
substantive appeal perfecting an appeal
on that issue.
2. The veteran and his representative
are hereby reminded that to obtain
appellate review of any matter not
currently in appellate status, a timely
appeal must be perfected-here, as
regards the claim addressed above, within
60 days of the issuance of the SOC.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The veteran need take
no action until otherwise notified, but he may furnish
additional evidence and/or argument during the appropriate
time frame. See Kutscherousky v. West, 12 Vet. App. 369
(1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v.
Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).
This REMAND must be afforded expeditious treatment. The law
requires that all claims remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2008).
______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs